Recess Appointments, Technically without the Recess

Update 3:49 p.m. President Obama has made three more recess appointments — this time to the National Labor Relations Board.

President Barack Obama, in appointing former Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Board, appears to have made a bold statement about executive power.

He put Cordray in place while the Senate was away — in what’s known as a recess appointment — to skirt Republican opposition that had held up Cordray’s nomination.

But technically, the Senate wasn’t away. According to the WSJ’s Laura Meckler:

The decision came after White House attorneys concluded the president has the legal authority to make a recess appointment even if the Senate is technically in session, Democrats said.

Republicans have said they wouldn’t confirm anyone to the post until changes are made to the bureau’s structure. In December the Senate failed to get enough votes to advance the Cordray nomination.

Senate Republicans have tried to prevent the appointment by keeping the Senate technically in session with perfunctory proceedings until senators return to Washington later this month.

Senate Minority Leader Mitch McConnell questioned whether the appointment was legal given that the Senate isn’t technically in recess now.

It is a good question. The proceedings, held every three days, usually take about 30 seconds and were first used late in President George W. Bush’s second term to prevent him from using his recess-appointment authority, Vinson & Elkins’s John Elwood writes over at The Volokh Conspiracy. . .